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Home » Events in the News, Politics, Shoftim

Shoftim: Torah or Democracy?

Submitted by on August 16, 2009 – 4:06 amOne Comment | 1,729 views

Disenchantment

In the summer in 2009, US citizens unhappy with health care reform, angrily voiced their displeasure with the government in town hall meetings across the United States. President Obama’s approval ratings plummeted to unprecedented lows, yet he continued to push his health care legislation. The opposition charged him with ignoring the will of the constituents while supporters claimed that the voices of dissent did not reflect the majority of the American people.

This problem seems to crop up every so often in democracies. I am reminded of the fierce opposition President Bush encountered to the Patriot Act and to the war in Iraq. Bush also dismissed the fierce opposition with the claim that the American people appreciate the need for a robust war on terror.

Democracies elect leaders that reflect their views, but invariably discover that they differ with their leaders on certain policy positions. The opposition always acts surprised when the leader continues to pursue his agenda, but I am surprised that they still act surprised. After all, it happens almost every time.

Democracy

There is no question that the democratic system of allowing citizens a vote is superior to totalitarian regimes. The dictator dismisses the will of the people and follows his heart’s content – often to the detriment of the people. Democratically elected leaders seek their mandate from the people who examine their platform and policy views before voting. This enables the people to participate in the governance of the country.

The people’s participation is, however, limited by the fact that they cannot govern directly. A country can only have one leader and one body of representatives; governance by national referendum does not work. Voters therefore vote on leaders, who represent their ideas, rather than directly on the ideas.

Leaders once elected receive a mandate to lead. If on certain issues they disagree with the voters they are expected to exercise leadership and inspire confidence rather than follow the latest trend in the polls. They were elected to lead; not to consult the poll every time a national response is required. (1)

Is this the best system? Not necessarily, the voters often grow disenchanted with their leaders. But considering the imperfection of human nature, democracy is the best system we have. Its checks and balances are designed to provide for the inherent imperfections of the system. In this case, voters who don’t like their leader can vote for another candidate in the next election.

The question is – is there a better way? Fortunately the answer is yes. In the Torah

Innerstream.ca Torah Insights into Life And Jewish Practice

torah or democracy - innerstream

we read of a system of appointing judges that sidesteps the entire problem of disenchantment.

Appoint Over You

The Torah teaches, “Judges and guardians shall you appoint over you.” (2) The judge’s mandate was to rule “over them” rather than in agreement with them. Judges were therefore appointed on the strength of their character, rather than their views. The Judge who ruled in accordance with Torah law over the opinion of the people was actually keeping with his mandate. You can’t grow disenchanted with a judge who rules against you when his mandate is not to reflect your will, but that of G-d.

The Real Movers

Another basic flaw in the electoral system is the money that it takes to run an effective campaign. The bar keeps being raised with every election. In the last presidential campaign candidates raised over a billion dollars. It is impossible to raise that much money without currying favors from powerful donors. These donations invariably come with expectations of reward on the other end. A politician elected to office is beholden to the well being of his donors no less than to his constituents. The result is abuse of tax payer money and legislation that does not favor the constituency.

In the milieu of Torah, judges did not campaign. They were not elected by the citizens because their views were not intended to reflect the will of the citizenship. Without the need for large campaign budgets they were free of the crushing albatross of campaign donations and the pressure of bribes.

Thus the Torah instructs the judges not to recognize or fraternize with the wealthy. Even fraternizing with the wealthy is a perversion of the integrity of justice because it creates conditions conducive to bribery.  This is why the Torah exhorts the judge, “Do not pervert justice, do not recognize the face [of the wealthy] and do not accept a bribe.” (3)

Turnover

The final problem with the democratic system is its frequent elections. As soon as a leader acclimates to the rigors of office and settles into the position it is time to campaign for another term. This forces the leaders to remain true to the mandate given them by the people, but it also distracts them from their work and forces frequent turnover at the top. Democratically elected leaders are never given the opportunity to utilize their experience; as soon as it is accumulated they must step down. It is a necessary flaw in the system, designed to protect against abuse of power, but it’s a flaw nonetheless, The Torah system sidesteps the entire problem.

The Torah teaches, “Thou shall not plant an [idolatrous] Asheria tree beside the altar of G-d.” (4) At least one commentator explained this verse in the context of the appointment of judges. If a judge is performing admirably he is compared to the altar because he serves G-d as surely as a sacrifice on the altar. If the altar of G-d is functioning well, or if the formerly appointed judge is performing admirably, it is wrong to plant a new tree in its place.

New judges are often appointed because we want a leader who will more closely reflect our will. (5) In the case of Torah the leader’s mandate was never to reflect the will of his appointees; it was to implement the law of Torah. This is why judicial appointments were life long. There was no need for periodic readjustments to ensure that the leader remained loyal to his constituents. (6) (7)

The Torah system is markedly different from democracies in that the constituents are prepared to be ruled by Divine law. A society that desires self rule must settle for the democratic system. Despite its flaws, democracy is the only system that works. There will always be disagreements and there will always be new elections; that is the essence of democracy. However, one cannot escape the fact that a society prepared to accept the rule of G-d is presented with a much more efficient system. (8)

Questions for Further Discussion

Would you trust a judge with that much power or would you be concerned for abuse of power?

Would you feel comfortable in a theocracy or are you more comfortable in a democracy?

Do the limitations of the democratic system affect or concern you?

Are you content with the fact that the Judiciary is appointed to life long positions?

What worries you more, too much religious freedom or too much religious enforcement?

You are invited to continue the discussion by posting a comment.

Footnotes

  1. Unless candidates retract a direct campaign promise
    or major platform policy they cannot be charged with abusing their
    mandate.
  2. Deuteronomy 16: 18.
  3. Deuteronomy 16: 19.
  4. Deuteronomy 16: 21.
  5. Asheria
    is Hebrew for Idolatrous tree. The commentator explains that the word
    Asheria shares etymological roots with the word Osher, Hebrew for
    happiness. The people desire a new leader because the old one does not
    make them happy, not because he is not performing admirably. Hence the
    Torah’s instruction not to plant an Asheira. Do not appoint a judge
    whose only mandate is to make the people happy next to a well
    functioning altar – a judge who serves G-d.
  6. Overruling
    the will of the people was not a sufficient cause for disbarment of the
    judge. The only cause for disbarment would be rejection of the Torah.
  7. One
    might argue that a similar system exists with regards to judicial
    appointments in a democracy, but that is not entirely correct. Even
    though judicial appointments are life long and their mandate is to
    enforce the law, rather than the will of the people, the fact remains
    that the law itself reflects the will of the people. This is why the
    law is crafted and legislated by the people’s representatives. The fact
    is also that in their appointment of judges leaders seek out judges
    that reflect the temperament of their constituents. Despite their life
    long appointments Judges ultimately serve the people, not the law.
    Torah law reflects the will of G-d, not the people. A Torah judge
    therefore serves only G-d, not the people
  8. This
    essay is based on the commentaries of Or Hachaim and Kli Yakar on
    Deuteronomy 18: 18, 19 and 21.
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One Comment »

  • Anonymous says:

    You are suggesting that ultimately the best way to form the judicial branch for people who are self governed is to elect judges, who can be trusted to enforce the law rather then the will of the people.
    1) Even if that does not generally work (because you cannot find such judges) I think it would be easier to find a group of such electable people, then it would be to find a nation which is ready to accept autocracy (The Torah way).
    2About note 7. It is not the fault of the judge that the law is the will of the people. Who says that he will not do his job correctly just because the law he uses was made based on a general consensus. Who says they will be influenced by the people standing in front of them just because the law they use was made by the people in front of them?
    Your argument about the law being made by congress rather then by the judicial branch has nothing to do with this conversation.
    There is no doubt that the law is dictated by the people. There is nothing wrong with the law being the will of the people. The question at hand is, will it be implemented well by judges in a system like the one employed by the united states.

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